NO.

_________________

STATE OF TEXAS § IN THE _____________ COURT

§
vs. § OF
§
JOHN DOE § ____________ COUNTY, TEXAS

SUPPLEMENTAL MOTION FOR FORENSIC DNA TESTING

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the Petitioner in the above styled and numbered cause, by and through his attorney of

record, and pursuant to Vernon’s Ann. Code of Criminal Procedure Articles 64.01 and 64.03, files this

supplemental motion for forensic DNA testing. Petitioner respectfully requests that this Court order

autosomal (“STR”) and Y-Chromosome (“Y-STR”) DNA testing, to be performed at a private laboratory.

Petitioner would show in support of this motion the following:

BRIEF STATEMENT OF FACTS

In _____, a judge convicted Petitioner of sexual assault. The trial court assessed punishment,

enhanced, at sixty years. Petitioner’s first Motion for Forensic DNA Testing contains a complete statement

of facts describing the assault. In brief, Petitioner’s conviction hinged primarily on the victim’s eyewitness

identification, and serological testing of the biological material collected could not exclude him as the

contributor of the sample.

TO AVOID POTENTIALLY INCONCLUSIVE RESULTS ARISING FROM THE QUALITY OF BIOLOGICAL
MATERIAL COLLECTED FROM THE ASSAULT, ITEMS SHOULD BE SUBJECTED TO BOTH
TRADITIONAL STR DNA TESTING AND NEWER Y-STR TESTING.

The assault of the victim occurred in _____, and biological material collected during the sexual

assault examination (“rape kit”) is now nineteen years old. The quality and quantity of the available

biological material is currently unknown and cannot be determined until the evidence is submitted for

forensic testing. Degradation of the sample due to environmental factors, the presence of a “mixed”

sample, or the possible absence of sperm can all lead to inconclusive results using traditional STR DNA

testing.
 DNA testing can consume all available biological material and prevent any further testing. In the

event that there is only enough evidence for one attempt at analysis, the evidence should be analyzed by a

laboratory capable of performing both STR and Y-STR DNA testing. An ASCLD accredited lab is

capable of performing both forms of testing and can determine which form of testing is appropriate and

feasible after ascertaining the quality of the sample.

Currently, the Texas Department of Public Safety (“DPS”) can only perform STR testing.

Utilizing only STR testing through DPS poses a risk that all biological material will be consumed, thereby

preventing further testing, without obtaining definitive results. In addition, if STR testing fails to yield

interpretable results and biological material still exists, Petitioner will likely return to this Court to seek

private testing on the remaining materials.

BIOLOGICAL MATERIAL SHOULD BE SUBJECTED TO TRADITIONAL STR DNA TESTING.

The parties agree that Petitioner’s case is one in which traditional STR DNA testing can provide

determinative proof of guilt or innocence. If possible, traditional STR testing is preferred due to its higher

power of discrimination and ability to uniquely “identify” the true perpetrator. John M. Butler, Forensic

DNA Typing 203 (2d ed. 2005). It is also the foundation of the Federal Bureau of Investigation’s (“FBI”)

CODIS DNA databank, which can produce a “cold hit” to identify the true perpetrator of the crime.

BIOLOGICAL MATERIAL SHOULD BE SUBJECTED TO Y-STR TESTING.

In the event that STR testing fails to yield results, Petitioner’s case is also suitable for a newer

form of DNA testing called Y-Chromosome (“Y-STR”) testing. Y-STR testing analyzes markers found

exclusively on the Y chromosome, which only males have. Greg Hampikian, The Future of Forensic DNA,

3 Canadian J. of Police & Security Services 5, 11 (2005). Since the vast majority of sexual assaults involve

male perpetrators, Y-STR testing is gaining importance in forensic testing because of its ability to examine

only the male portion of a sample. Butler, supra, at 201-02.

Y-STR testing has obtained interpretable results where autosomal tests have failed due to

extremely low levels of male DNA or extremely old samples where conventional differential extraction is
not successful. In one recent study, Y-STR typing was performed on fifty unsolved rape cases that failed to

yield a male profile after differential extraction. In 48% of the cases, sufficient male DNA existed to

produce a Y-STR profile. A.F. Dekairelle & B. Hoste, Application of a Y-STR-pentaplex PCR (DYS19,

DYS389I and II, DYS390 and DYS393) to sexual assault cases, 118 Forensic Sci. Int’l 122 (2001).

Y-STR testing has also had a higher success rate in producing a male profile in sexual assault

cases with mixed samples where only minor amounts of male DNA may exist or where no visually

identifiable sperm were observed. Sexual assault samples, such as vaginal swabs, often contain large

amounts of female DNA and relatively small amounts of male DNA. Cassie L. Johnson et al., Analysis of

Non-Suspect Samples Lacking Visually Identifiable Sperm Using a Y-STR 10-Plex, 50 J. of Forensic Sci.

1116 (2005). In the case of a mixed sample, the large amount of DNA from the female victim mixed with a

relatively small amount of DNA from the perpetrator can “mask” the male suspect’s profile, resulting in

inconclusive or interpretable results. Id. Since Y-STR testing only amplifies the male markers in a mixed

sample, it ignores the female DNA present and can produce a profile of the male suspect even when the

male component of a sample is extremely small. Hampikian, supra, at 11. In one recent study comparing

autosomal testing with Y-STR testing, partial detection of non-victim alleles occurred in four cases (4%)

using autosomal STRs while Y-STR testing detected non-victim alleles in nine cases (16%). A clean male

type was obtained in only 34% of cases using autosomal testing, compared with a clean male type obtained

in 52% of cases using Y-STRs. Mechthild Prinz et al., Validation and casework application of a Y

chromosome specific STR multiplex, 120 Forensic Sci. Int’l 177, 181 tbl.4 (2001).

In the event that the samples in the Petitioner’s case fail to yield an interpretable profile through

conventional STR testing, Y-STR has a proven track record of success in producing interpretable results

and can be used to conclusively exclude Petitioner as a contributor of the biological material in this case.
II. Y-STR DNA TESTING IS A SCIENTIFIC METHOD SUFFICIENTLY RELIABLE AND
RELEVANT TO BE ADMISSIBLE UNDER RULE 702 OF THE TEXAS RULES OF EVIDENCE
AS REQUIRED BY ARTICLE 64.03 OF THE CODE OF CRIMINAL PROCEDURE.

No Texas case addresses the admissibility of Y-STR testing results. See Thacker v. State, 177

S.W.3d 926 (Tex. Crim. App. 2005) (denying relief because applicant failed to establish that his request for

Y-STR testing was not made to unreasonably delay the execution of sentence or the administration of
justice); Fox v. State, 2006 WL 488586 *4 (Tex. App. – Houston [1st Dist.] 2006, no pet.) (not designated

for publication) (refusing Y-STR testing because appellant failed to establish by a preponderance of the

evidence that a reasonable probability exists that he would not have been convicted if exculpatory results

had been obtained through the requested testing).

However, other jurisdictions have considered the results of Y-STR testing for Daubert

admissibility hearings and trial. In every case, the courts have accepted the results as sufficiently reliable.

See Sudhir K. Sinha et al., Utility of the Y-STR Typing Systems Y-PLEX™ 6 and Y-PLEX™ 5 in Forensic

Casework and 11 Y-STR Haplotype Database for Three Major Population Groups in the United States , 49

J. Forensic Sci. 691, 699 (2004). See also id. at 693 tbl. 1 (listing cases where Y-STR testing has been

accepted).

III. PETITIONER MEETS ALL OF THE REQUIREMENTS FOR DNA TESTING AS REQUIRED BY
ARTICLE 64 OF THE CODE OF CRIMINAL PROCEDURE AND IS PREPARED TO BEAR THE
COSTS OF PRIVATE TESTING.

Having met all of the requirements of Article 64 as established in Petitioner’s first Motion for

Forensic DNA Testing, Petitioner respectfully requests that his motion be granted and DNA testing ordered.

To ensure that any DNA testing ordered is performed without delay, counsel for Petitioner agrees to bear

the costs of DNA testing at a private laboratory rather than wait for DPS to conduct testing given that

agency’s backlog and inability to perform Y-STR testing. See Governor’s Criminal Justice Advisory

Council, January 2006 Report 6, 15 (2006) (noting the DPS backlog and need for assistance with

technological capabilities).

Respectfully Submitted,

________________________